Provisional Measures in the Arctic Sunrise Case

On 22 November 2013, ITLOS delivered its decision on the request for provisional measures in the case of the Arctic Sunrise (The Netherlands v Russia). Two aspects of the provisional measures decision are particularly relevant for other UNCLOS disputes.

First, in considering whether an Annex VII tribunal would have prima facie jurisdiction over the dispute, the Tribunal examined the declaration made by Russia upon ratification of UNCLOS in 1997, which purported to exclude a broader range of disputes from compulsory dispute settlement than that provided for under UNCLOS (UNCLOS allows for the exclusion of disputes concerning law enforcement activities related to marine scientific research and the living resources of the EEZ, as discussed previously here.) It is beyond debate that UNCLOS was concluded as an “all-or-nothing” package deal, and that States were not able to opt out of certain provisions of the treaty by entering reservations upon ratification (UNCLOS Article 309). Article 310 of UNCLOS permits States to make declarations or statements regarding the application of the Convention at the time of signature, ratification or accession, provided that such statements “do not purport to exclude or to modify the legal effect of” the provisions of UNCLOS in their application to that State. As the Russian example illustrates, States have, in practice, attempted to modify the application of UNCLOS through the use of statements and declarations. The ITLOS order of 22 November denied the Russian declaration any reservation-like effect, interpreting the declaration as applicable only to disputes concerning law enforcement activities related to marine scientific research and the living resources of the EEZ.

Second, the Tribunal confirmed for the first time that the refusal of a party to participate in provisional measures proceedings would not constitute a bar to the issuance of an ITLOS order. (While the issue of non-participation also arises in the Philippines v China Annex VII arbitration, provisional measures have not been requested in that case).  Article 9 of UNCLOS Annex VII states that non-appearance will not constitute a bar to Annex VII arbitral proceedings proper. Regarding provisional measures, Article 290(3) states that provisional measures may be prescribed “after the parties have been given an opportunity to be heard”, but does not address the issue of non-appearance or non-participation.  Citing numerous ICJ decisions on non-participation in proceedings in support of its position, ITLOS held that a non-appearing State will be regarded as a party to proceedings, provided they have been given an opportunity to present their case (paras. 48 & 49).  The Tribunal thus turned to ICJ practice to interpret an issue not specifically dealt with under UNCLOS.

Finally, as discussed by Julian Ku on Opinio Juris, Russia has stated that it does not intend to comply with the ITLOS order, maintaining that the dispute is excluded from the jurisdiction of an Annex VII tribunal on the basis of its declaration upon ratification of UNCLOS in 1997, and that ITLOS accordingly does not have jurisdiction to prescribe provisional measures.  The Arctic Sunrise case does not involve maritime boundaries, but the question of permissible jurisdiction of the coastal State within the EEZ is an important one, and one that Russia is unwilling to submit to compulsory dispute settlement. A possible solution for Russia would be to release the ship on the basis of a decision of a domestic court, effectively complying with the ITLOS order while preserving the coherency of its argument on the categories of UNCLOS disputes susceptible to compulsory settlement. It remains to be seen whether Russia has any interest in appearing to comply with ITLOS orders.

Along with the refusal of China to participate in the Annex VII arbitration initiated by the Philippines, and the pursuit by Colombia of various strategies to avoid compliance with the maritime delimitation decision of the ICJ in the Nicaragua v Colombia case, the Russian position represents a further challenge to effective dispute settlement regarding the law of the sea. In particular, it represents a challenge to ITLOS and the binding nature of ITLOS provisional measures.